POLICE PROCEDURE FOR DEALING WITH THE MENTALLY AND PHYSICALLY DISABLED IN OTHER STATES

By: Duke Chen, Legislative Analyst II

You asked for current laws or procedures in other states for taking mentally or physically disabled persons into custody.

SUMMARY

At least seven states have adopted the Uniform Duties to Disabled Persons Act, which requires police to make a diligent effort to determine whether a disabled person is suffering from certain illnesses that caused the “disabled condition.” We were unable to find any states that specified general procedures for police in apprehending a person who is statutorily mentally or physically disabled when taking him or her into custody.

Most, if not all states, including Connecticut (CGS § 17a-503), have statutes allowing police officers to detain persons they believe to have psychiatric disabilities and who are a danger to themselves or others around them.

But even for when there is no specific state law mandating a particular procedure taking a disabled person into custody, other state statutes may still apply. In addition to complying with the other state statues, the federal Americans with Disabilities Act (ADA) (42 USC § 12101 et seq.) and the Fourth Amendment right to be free from excessive force in the course of arrestwould still apply.

Additionally, even though states do not mandate specific procedures, some individual police departments have adopted policies for dealing with mentally or physically disabled persons. Attachment 1 is the Truro, Massachusetts Police Department's policy for dealing with the mentally ill.

Some states do mandate their police officers to receive training in how to deal with the mentally and physically disabled. Some of the states that do this are: California (Cal. Penal Code § 13515.25), Delaware (Del. Code Ann. tit. 11, § 8405), Indiana (Ind. Code § 5-2-1-9(a)(9)),(Oklahoma (Okla. Stat. tit. 70, § 3311.5), and Texas (Tex. Occ. Code Ann. § 1701.253).

The uniform act deals with persons who are in a disabled condition, which means he or she is incoherent, unconscious, semiconscious, or otherwise incapacitated to communicate.

Under the statute, police officers have a duty to, when possible, before arresting the person, determine if they are disabled due to epilepsy, diabetes, or from some other illness that would make them disabled. In order to determine the medical condition, the police officer should make a reasonable search for an identifying card that would have emergency information.

A police officer who finds a disabled person without identification still must make a diligent effort of finding out what caused the disabled condition.

A claim for relief against a police officer does not arise from the officer making a reasonable search of the disabled person to locate identification, even if the person does not have any identification.

If the police officer determines or has reason to believe the disabled person suffers from a medical condition that caused the person to be disabled, the officer should call the person's physician. If the officer cannot determine who the physician is or cannot contact him or her, the officer should transport the disabled person for medical treatment. Finally, if the officer believes it will be unduly dangerous to move the disabled person, the officer should make a reasonable effort to obtain medical assistance.

AMERICANS WITH DISABILITIES ACT

Under the ADA, it is unlawful for any public entity, including police, to discriminate against a person with a disability. The ADA defines a “disability” to be “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment (42 U.S.C. 12102 (1)).”

In order for individuals to make a claim under the ADA, they must establish that they:

1. have a disability meeting the definition of the ADA;

2. were deprived of a benefit or service that is generally provided by a public entity or they were discriminated against by a public entity;

3. were otherwise qualified to receive the benefit or service; and

4. did not receive the service or they were discriminated against because of their disability.

For commonly asked questions about the ADA and law enforcement, produced by the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, visit: http://www.ada.gov/q%26a_law.pdf.

In an excessive force claim, the plaintiff “must demonstrate that the police defendant's actions were not objectively reasonable, viewed in light of the facts and circumstances confronting him and without regard to his underlying intent or motivation” Aceto v. Kachajian, 240 F. Supp. 2d 121 (Dist. Mass. 2003). In other words, the court will look at various factors including the severity of the crime, whether the suspect posed an immediate threat to the safety of the officer or others, and whether he or she was actively resisting arrest or trying to evade arrest by flight.

The police may make arrests with such force as is reasonably necessary to make the arrest, and may not go beyond what is necessary to secure both their own safety and the safety of the general public. The analysis for excessive force is the same for a mentally or physically disabled person as it is for someone who is not disabled, but the difference could be in what is deemed reasonable.